(probably no big deal, but the two long links in the quote in your post are using your moniker)

Thanks for telling me. I thought I had removed any personal links, but they evidently used a unique ID for me (it came from an email). I have removed the IDs, which rather breaks the links. They just go to the Demand Progress website now.

MPAA "embedding is infringement" theory rejected by courtJudge calls on Congress to update copyright law for the online video era.

by Timothy B. Lee - Aug 3, 2012 10:15 pm UTC

A federal appeals court has decisively rejected a legal theory that would have placed anyone who embeds a third-party video on her website in legal jeopardy. In a Thursday decision, Judge Richard Posner of the Seventh Circuit Court of Appeals ruled that the "video bookmarking" site myVidster was not liable to the gay porn producer Flava Works if users embedded copies of Flava videos on myVidster.

Judge Posner's reasoning is interesting. He argues that when you view an infringing video on a site such as YouTube, no one—not you, not YouTube, and not the guy who uploaded the infringing video—is violating copyright's reproduction or distribution rights. And since simply viewing an infringing copy of a video isn't copyright infringement, he says, myVidster can't be secondarily liable for that infringement.

Viewing an infringing video online may lead to a violation of copyright's public performance right, Posner goes on, but here the law is murky. The judge called on Congress to help clarify exactly how copyright law should apply in the age of Internet video.

And if even one of copyright's most respected jurists is confused, it's a clear sign that copyright law needs work.

Embedding is not infringementFlava Works sued myVidster because users kept adding links to Flava videos to the myVidster site. myVidster is a "video bookmarking" site that automatically embeds bookmarked videos on its site and surrounds them with ads. To the untrained eye, it looks like myVidster itself serves up the infringing copies of the videos. Based on that perception, the trial court judge ruled that myVister was directly infringing Flava's copyrights and granted a preliminary injunction.

Of course, if embedding is direct infringement, then anyone who embeds a video without first researching its copyright status is at risk of being a direct infringer. That would put a damper on the practice of embedding, which has made the Web a more convenient and interactive place.

The Motion Picture Association of America, of course, was thrilled with this initial result. But as Google and Facebook pointed out in an amicus brief late last year, the lower court's decision was inconsistent with the relevant precedents.

Judge Posner, writing for a unanimous three-judge panel, overruled the lower court's judgment. While it might appear that videos embedded on myVidster are being distributed by myVidster, the underlying data is actually being streamed directly from third-party servers to user computers. Hence, Posner wrote, neither myVidster nor its users are guilty of direct copyright infringement.

"Viewing" is not copyingStill, myVidster could be liable for secondary copyright infringement for assisting, benefitting from, or "inducing" the infringing activities of others. But Judge Posner rejected that argument as well, and his reasoning was interesting:

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As long as the [myVidster] visitor makes no copy of the copyrighted video that he is watching, he is not violating the copyright owner’s exclusive right, conferred by the Copyright Act, “to reproduce the copyrighted work in copies” and “distribute copies ... of the copyrighted work to the public.” His bypassing Flava’s pay wall by viewing the uploaded copy is equivalent to stealing a copyrighted book from a bookstore and reading it. That is a bad thing to do (in either case) but it is not copyright infringement. The infringer is the customer of Flava who copied Flava’s copyrighted video by uploading it to the Internet

So a user who streams an infringing video from a website does not violate copyright's reproduction or distribution rights. But what about the uploader—isn't myVidster contributing to his initial act of infringement? Surprisingly, Posner suggests the answer is no.

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Flava contends that by providing a connection to websites that contain illegal copies of its copyrighted videos, myVidster is encouraging its subscribers to circumvent Flava’s pay wall, thus reducing Flava’s income. No doubt. But unless those visitors copy the videos they are viewing on the infringers’ websites, myVidster isn’t increasing the amount of infringement. An employee of Flava who embezzled corporate funds would be doing the same thing—reducing Flava’s income—but would not be infringing Flava’s copyrights by doing so. myVidster displays names and addresses (that’s what the thumbnails are, in effect) of videos hosted elsewhere on the Internet that may or may not be copyrighted.

In Posner's view, no matter how many people view a video on a video sharing site, there's only one violation of the reproduction and distribution right: the original uploading of the video.

The distinction between "downloading" a video and "streaming" seems tenuous to us, though. Modern Web-based video streaming software typically caches a "streamed" video so that by the end of it the user has a complete copy of the video on his computer and can re-watch it as many times as he wants. That copy may stay on the user's computer for hours if the user leaves that browser window open. Posner did not examine how long an infringing video could be stored on a user's computer before it infringed the reproduction right.

Public performanceCopyright holders also have the right to control public performances of their work, and Posner argues that argument may be more promising for Flava Works. But here the law is ambiguous:

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The Copyright Act makes it unlawful “to perform the copyrighted work publicly,” defined, so far as relates to this case, as “to transmit or otherwise communicate a performance... of the work... to the public... whether the members of the public capable of receiving the performance... receive it in the same place or in separate places and at the same time or at different times.” One possible interpretation is that uploading plus bookmarking a video is a public performance because it enables a visitor to the website to receive (watch) the performance at will, and the fact that he will be watching it at a different time or in a different place from the other viewers does not affect its “publicness,” as the statute makes clear... An alternative interpretation, however... is that the performance occurs only when the work (Flava’s video) is transmitted to the viewer’s computer.

Posner says the first interpretation is "hopeless for Flava" since myVidster had nothing to do with uploading the video. He argues that the second interpretation might prove more fruitful for the plaintiff, but then said that Flava had not proven its case was strong enough to win a preliminary injunction. myVidster will be allowed to continue operating its site while Flava and myVidster deal with other issues raised by the lawsuit.

"Legislative clarification of the public-performance provision of the Copyright Act would be most welcome," Posner wrote. Given the contentiousness surrounding copyright, we're not going to hold our breaths waiting for Congress to respond.

MPAA leak: O'Dwyer, TVShack.net case "isn't about Internet freedom."Memo suggests film org wants to remind its colleagues—paint this kid as a crook.

by Nathan Mattise - Aug 6, 2012 1:15 am UTC

Don't let the Mickey Mouse shirt fool you. As far as the MPAA is concerned, the public needs a reminder of who Richard O'Dwyer really is.

“Being 24, posing for newspaper photo shoots in a cartoon sweatshirt, and having your mother and Jimmy Wales speak for you, does not mean you are incapable for breaking the law.”

The reminder above comes from a supposedly leaked MPAA memo obtained by TorrentFreak. It outlines talking points when discussing the much publicized O'Dwyer case, involving the 24-year-old and the "link site" he used to run. TVShack.net didn't directly host possibly infringed materials, but the site did link to such videos. While this would likely be legal under UK law, O'Dwyer landed squarely in the crosshairs of US copyright enforcers. This spring, news broke that O'Dwyer would be extradited to the US for this alleged copyright infringement despite no locally illegal activities being performed in his UK home. O'Dwyer is currently appealing this decision, but the July timeline for an appeal decision was delayed without concrete rescheduling.

O'Dwyer's fight sparked Internet activism of the strongest kind, with Wikipedia founder Jimmy Wales pushing an online petition. Wales referenced the SOPA-PIPA derailment as the public's "first big victory" in the realm of Internet freedom, and sees preventing O'Dwyer's extradition as a potential second. To date, more than a quarter of a million people have signed the petition. But the MPAA takes a clearly different view (while reassuring all that they are pro-Internet freedom).

“This case isn’t about Internet freedom. It’s about a man profiting from theft. However, we do welcome a larger discussion about how best to protect intellectual property online while ensuring an Internet that works for everyone.”

In addition to some initial talking points, the memo contains a faux-Q&A to keep commentary along the party lines. These responses run the gamut, from thoughts on the Wales petition (“We think it’s presumptuous of Mr. Wales to claim to speak for the ‘general public") to the extradition itself ("Governments and law enforcement agencies make these decisions and we are not in a position to comment on the specifics of the extradition proceedings").

Ars will update this post if any additional information from the MPAA becomes available, and we'll continue to follow the O'Dwyer situation.

Another news item here re the TPP draft, from arstechnica: Leaked: US proposal on copyright's limitsI am confused by this. Is this really how easy it is for commercial lobbies to write their own laws and bypass the Senate? That would seem to emasculate the relatively democratic Senate approval processes and effectively make the commercial lobbyists unelected "lawmakers" - wouldn't it?(Post copied below sans hyperlinks - which are worth reading also, so go to the actual post for further info.)

Spoiler

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Leaked: US proposal on copyright's limitsA TPP draft looks more restrictive than some had hoped.

by Megan Geuss - Aug 5, 2012 7:30 pm UTC

Late Friday, a few short paragraphs of text were leaked that revealed something of the terms on fair use being negotiated in secret by the Trans-Pacific Partnership. The TPP is a treaty currently being negotiated by nine Pacific Rim countries seeking to establish a new free-trade agreement on many issues, including intellectual property. The next negotiating round is set for early September in Leesburg, Virginia.

Much has been made of the secrecy in which the TPP has enshrouded its negotiations for an international trade agreement. In May, 30 scholars wrote to the US Trade Representative (USTR) asking for more transparency in the decision-making process, and critics have routinely claimed that such processes cater largely to narrow rightsholder interests.

The TPP met last in early July in San Diego, CA for a round of negotiations, but none of the draft texts were made public. After that round of negotiations concluded, the USTR sent an e-mail to the press announcing that it was proposing language on fair use and limitations to copyright in the international treaty, a first for the generally conservative agency. But the leaked text, revealed by Knowledge Ecology International, suggests that these exceptions to IP rules won't be quite as open as some fair use advocates had hoped.

Back in July, a USTR spokesperson said the trade agency would push for rules "that will obligate Parties to seek to achieve an appropriate balance in their copyright systems in providing copyright exceptions and limitations for purposes such as criticism, comment, news reporting, teaching, scholarship, and research." But in the new leaked draft text, while very similar phrasing appears, there seems to be room to crack down on any anticipated broad terms of fair use.

The US and Australia, for instance, proposed what entities like the EFF and KEI fear could be a rightsholder-friendly three-step test to determine what exceptions to copyright are allowable. The leaked texts specifically say that the participating countries should confine these limitations "to certain special cases that do not conflict with a normal exploitation of the work, performance, or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder."

It's important to note that the draft is just that—a draft. But the leak suggests that the US and Australia are pushing for more restrictive language, while countries like New Zealand, Chile, Malaysia, Brunei, and Vietnam are in favor of more open rules to allow "a party to carry forward and appropriately extend into the digital environment limitations and exceptions in its domestic laws." The US and Australia opposed that wording, and sought to change the language to suggest, “that each party may, consistent with the foregoing, adopt or maintain... exceptions and limitations for the digital environment."

In other words, the US and Australia are saying a country can't just decide on "limitations and fair use" based on existing domestic IP laws, some of which may be quite broad. Instead, limitations must conform to international agreements, including the TPP, which can be more restrictive.

Another news item here re the TPP draft, from arstechnica: Leaked: US proposal on copyright's limitsI am confused by this. Is this really how easy it is for commercial lobbies to write their own laws and bypass the Senate? That would seem to emasculate the relatively democratic Senate approval processes and effectively make the commercial lobbyists unelected "lawmakers" - wouldn't it?

Still on the digital warpath...

It's much worse than that. Much, MUCH worse... If they fail, the Fuhrer President will act... Nah. I was right the first time. The Fuhrer will act...

Well, I've done my bit of activism in my corners of the net, I'm gonna have to take a break from all this junk for a while. The emotional roller coaster is wearing me out now.

I wonder how many people feel/think the same?I have a theory that a lot of this nonsense is designed to desensitize people by flooding them with incessant change - you get change-induced fatigue/narcosis and stop fighting it. Even the most stalwart activists could become more malleable, less resistant and more accepting.This is how Scientology and various other brainwashing cults operate.

Well, I've done my bit of activism in my corners of the net, I'm gonna have to take a break from all this junk for a while. The emotional roller coaster is wearing me out now.

I wonder how many people feel/think the same?I have a theory that a lot of this nonsense is designed to desensitize people by flooding them with incessant change - you get change-induced fatigue/narcosis and stop fighting it. Even the most stalwart activists could become more malleable, less resistant and more accepting.This is how Scientology and various other brainwashing cults operate.

I was that way for a long time.

I won't discuss it in public, but get me out for a beer.

(or 20)

But seriously, I get it. I was that way before. I'm simply sick of hiding my head in the sand now, and much more prone to spitting out the truth. It pisses some people off. I no longer care.

In one sense, of the forums I post to, everyone knows the dangers at stake. And per Iain's note, it's absolutely exhausting, except it's not "an act", 'dem evil critters wanted SOPA for what it was, they didn't think 12 moves ahead in any kind of master plan. Rather, there's everything to gain and little to lose to just keep introducing these things, and like me, eventually the energy of the rebels wears out.

A main reason I'm going to take a break soon is that X internet freedom fighters can only do so much, we got the basic word out twice, on SOPA and ACTA, and we're all collectively getting tired and starting to miss the 3rd generation bills. So even if we keep hollering, one day some random FSCKILLA billa (or whatever acronym) bill hits, we'll be living in a Post-______ world.

What we need is some higher grade help, like Judge Posner I mentioned elsewhere, or maybe that new silicon valley corp coalition. We need a signature event that completely turns Copyright on its head by using their own over-extended rules against them, so devastatingly that it re-writes the entire global mood. Then I'll join back in the aftermath cleanup.

But it's getting to where I'm running out of steam in my local life, and if that happens I'll be of no use to the movement 3 years from now with whatever that time frame requires.

Edit: Although I was a low end mediocre player, I am permanently altered by my Magic the Gathering days, and I instinctively look for "News Combos". News outlets, trying to drill out copy as fast as possible, (lately?) seem to have a bad habit of treating each news "object" like it's its own thing, and either via author exhaustion or design, refuse to see what happens if you combine these IP related articles together. What MTG taught me is that even innocent looking (by innocent or malicious design) items can do absolutely devastating things in combination.

So (I'm forgetting now if I posted it here) like the Michigan law student who used a Supreme Court case to bust a local "don't yell at the meter maids" ordinance, my rough vision of these copyright rules is pinging my Combo Bell. Basically, if Copyright Infringements are $175,000 a pop, and Copyrighted Works come into play the *instant* that you create them, then some ballistic fluke backed by big pockets (to bull past the corruption stalling tactics) might be able to argue things that the mouse clicks that the user clicks *and saves locally in some kind of work* might constitute a Creative Work, and then Facebook gets to deal with $175,000 fines *per user* *per day*.

Well, I've done my bit of activism in my corners of the net, I'm gonna have to take a break from all this junk for a while. The emotional roller coaster is wearing me out now.

I wonder how many people feel/think the same?I have a theory that a lot of this nonsense is designed to desensitize people by flooding them with incessant change - you get change-induced fatigue/narcosis and stop fighting it. Even the most stalwart activists could become more malleable, less resistant and more accepting.This is how Scientology and various other brainwashing cults operate.

It's more than a theory. Great minds and all that, it's been announced as an explicit strategy of theirs. "Keep pummeling them with successive versions and one day they will be too tired to fight back anymore." Sorry to say, for me, they won. (For now.)

The Internet Archive has just enriched the BitTorrent ecosystem with well over a million torrent files, and that’s just the start of “universal access to all knowledge.” The torrents link to almost a petabyte of data and all files are being seeded by the Archive’s servers. Founder Brewster Kahle told TorrentFreak that turning BitTorrent into a distributed preservation system for the Internet is the next step.

The Internet Archive‘s mission statement is to provide “universal access to all knowledge,” which is not all that different from The Pirate Bay’s ethos.

BitTorrent is the fastest way to share files with large groups of people over the Internet, and this is one of the reasons that prompted the Internet Archive to start seeding well over a million of their files using the popular file-sharing protocol.

Starting today, all new files uploaded to the Archive will also be available via BitTorrent. In addition, a massive collection of older files including concerts from John Mayer, Jack Johnson and Maroon 5 and the Prelinger collection are also being published via torrents.

“I hope this is greeted by the BitTorrent community, as we are loving what they have built and are very glad we can populate the BitTorrent universe with library and archive materials,” Internet Archive founder Brewster Kahle told TorrentFreak.

“There is a great opportunity for symbiosis between the Libraries and Archives world and the BitTorrent communities,” he adds.

At the time of writing the Internet Archive is seeding 1,398,875 torrents, but hundreds of new ones are being added every hour. The Internet Archive recognizes that BitTorrent is now the fastest way to download files.

“BitTorrent is now the fastest way to download items from the Archive, because the BitTorrent client downloads simultaneously from two different Archive servers located in two different datacenters, and from other Archive users who have downloaded these torrents already.”

Interestingly, the Archive’s plans for BitTorrent are not limited to providing an alternative download link for their files. Founder Brewster Kahle says that they are also working on turning it into a storage mechanism.

“The next step is to make BitTorrent a distributed preservation system for content like ours,” Kahle told us. Kahle believes that the Internet Archive and the BitTorrent community can help each other and hopes to get the discussion on the preservation idea started.

“I think this whole thing will be awesome, and possibly very important,” he adds.

In the wake of recent news featuring raids, crackdowns, DDoSes and lawsuits, this announcement from the Internet Archive brings some very welcome positive news about BitTorrent. For those who are interested in tracking how many people are leeching from the archive, here are some fancy graphs.

A video accusing the American government of selling out to Hollywood has made a splash after being featured on the front page of the Pirate Bay, where it has garnered over 10 million views. Anti-Hollywood sentiment is nothing new, especially on The Pirate Bay, but what sets this video apart is its top-notch—one might even say Hollywood-caliber—production values.

On Wednesday, Ars talked to an individual behind the video. He said he and a friend paid for the video out of their own pockets. They are hoping to "raise awareness" of what they view as America's repressive copyright policies.

The video has three scenes. In the first, the "American Motion Picture Association" announces it has hired "Senator Chris Rodd" (clearly references to the MPAA and its chairman, former Sen. Chris Dodd (D-CT)) to represent Hollywood. In the second scene, police carry out a military-style raid on a London home. The final scene takes place in an "undisclosed location." The kid arrested in London is now in chains, wearing an orange jumpsuit and a hood over his head. The young soldier guarding the prisoner asks an older American in a suit what the suspect did, and looks incredulous when he's told that he's been arrested for copyright infringement.

Obviously, the video is over-the-top. Nothing exactly like the incident depicted has happened in real life. The US government doesn't subject copyright defendants to the same harsh treatment as suspected terrorists. But after the commando-style raid on Kim Dotcom's mansion in January, it may be close enough to the truth to make effective propaganda.

The website associated with the video depicts Kim Dotcom, Richard O'Dwyer, and others as victims of a copyright regime run amok. The site is short on details about who's behind it, providing only an email address.

On Wednesday, Ars spoke to one of the producers, who identified himself as "Andrew," via Skype. He told us he's a financial professional outside the United States. He created the video with a friend who also works "on the stock exchange."

Believing a video would attract a wider audience than a text-based website, they hired a director and a sound professional to produce a 3-minute video. "Andrew" told us the whole video cost about $5000 to produce, and that he and his friend funded the project out of their own pockets. "We really don't have much to do with the Internet industry as a whole," he told us.

If this video is a hit, it could be the first in a series of videos focused on "online freedom and copyright." The next one might be tied to the American elections in November.

Why the secrecy? "You see what's happening with people who are involved in this kind of stuff," "Andrew" told us. "Especially when you're directly attacking against political figures. We don't want to attract unnecessary attention in our lives."

He said he was motivated by the sight of people being "getting arrested left and right in different countries for various copyright infringement 'offenses.'" He said that copyright issues "affect pretty much anybody."

Ask HN: Wikileaks is available from Tor. Who's blocking it?9 points by alex_marchant 47 minutes ago | 6 commentsIt looks like the DDoS isn't the main culprit here. I assume that if the site is available from Tor, then someone must be blocking the site.Can ISP's block Wikileaks? What is their justification if so?____________________________________________________guns 24 minutes ago | linkThat's pretty interesting. I can't reach wikileaks.ch from my home connection, or from one linode instance, but it is available through a second linode instance (in Dallas):https://www.refheap.com/paste/4309____________________________________________________Udo 30 minutes ago | linkCan you give a little more context?Wikileaks.org loads just fine using my standard ISP here in Germany. I once worked for a project that scraped WL periodically for content, so I can tell you from experience that Wikileaks uptime is not exactly stellar - that's why they have a million mirror sites.______________________________

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Skalman 25 minutes ago | linkWikileaks has been having DDoS issues for quite a few days now[1], and wikileaks.org (88.80.2.33) is not available with my ISP in Sweden.[1] http://www.technolog...ology/technolog/wiki...____________________________________________________

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alex_marchant 23 minutes ago | linkWhy would it be available so consistently in the Tor browser though?____________________________________________________

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Skalman 19 minutes ago | linkI have no clue. It does seem like it's blocked selectively as guns seems to have it working from linode.Edit: It also seems to work from an Amazon instance that I have access to.Edit 2: It seems like it works from my university (Lund in Sweden).

____________________________________________________alex_marchant 27 minutes ago | linkI'm in the US. If it doesn't load in any browser, and http://www.downforeveryoneorjustme.com/ says its down, but then loads instantly in Tor... I assume something is preventing me from seeing it.

Presumably, this could be deliberate blocking/censoring of Wikileaks(?). If it is, then it may be a deliberate test/demonstration of a fait accompli. I suppose that it could be pointless to think of fighting the SOPA etc. legislation, if the Internet controls were already in place and being used to "good effect".

Next to the MPAA, the main lobbying organization that pushed SOPA was the US Chamber of Commerce. The organization and its laughably inept "Global Intellectual Property Center" are infamous for the fact that they have absolutely no shame in using completely bogus numbers to argue for bad laws that their highest spending backers support. Not surprisingly, the USCoC did not take the loss over SOPA lightly, and it appears that they're gearing up for the next version of SOPA in 2013. As pointed out by Gautham Nagesh, the USCoC has kicked off a new ad campaign priming the pump for new legislation to "protect intellectual property."(Read the link for the rest.)

The Trans-Pacific Partnership (TPP) endangers the Internet and digital freedoms on par with ACTA, SOPA, and PIPA, and it does so in two significant ways: First, its intellectual property (IP) chapter would have extensive negative ramifications for users’ freedoms and innovation, and second, the entire process has shut out multi-stakeholder participation and is shrouded in secrecy. The TPP is a major threat because it will rewrite global rules on IP enforcement and restrict the public domain.

Posted by samzenpus on Friday September 07, @03:33AMfrom the keep-your-eyes-on-your-own-screen dept.

An anonymous reader writes "According to British daily The Telegraph, Sir Tim Berners-Lee has warned that plans to monitor individuals' use of the internet would result in Britain losing its reputation as an upholder of web freedom. The plans, by Home Secretary Theresa May, would force British ISPs and other service providers to keep records of every phone call, email and website visit in Britain. Sir Tim has told the Times: 'In Britain, like in the US, there has been a series of Bills that would give government very strong powers to, for example, collect data. I am worried about that.' Sir Tim has also warned that the UK may wind up slipping down the list of countries with the most Internet freedom, if the proposed data-snooping laws pass parliament. The draft bill extends the type of data that internet service providers must store for at least 12 months. Providers would also be required to keep details of a much wider set of data, including use of social network sites, webmail and voice calls over the internet."

Penny just dropped. Apparently **AA had figured out a long time back that copyright infringement complaints may not necessarily need to have any basis in fact. Vague or fabricated allegation might be all that is needed for relevant authorities to feel obliged to take action, and it becomes SEP (Someone Else's Problem) as to who pays for the time-wasting that ensues:Anti-Piracy Outfits Think Megaupload, Demonoid & BTjunkie Are Still Alive

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"What this shows is that anti-piracy companies aren’t even bothering to check content anymore – they’re simply searching Google, firing off notices without a second thought, and then expecting the search giant to clean up the mess."